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06 February 2016

International 'Law' Shaping Domestic Prohibition

Australian states and territories each have their own drug laws and the
Commonwealth Criminal Codeprovides a national framework for regulating drug trafficking and other drug crimes committed across borders. Our local laws and the drug laws of many other countries around the world are shaped by international treaties and conventions and while these treaties are not technically law in Australia, they have had a major influence on laws enacted by our Federal governments.

The
pragmatic recommendations of one of the first, and to this day one of
the most exhaustive studies about the effects of Cannabis, was the
Indian Hemp Drugs Commission Report in 1894. The Commission convened
not as the result of any major concerns in India, but because of a
question that was raised in the British House of Commons by
temperance crusaders. They were concerned about the effects of the
production and consumption of 'Indian hemp' and claimed that the
“lunatic asylums of India are filled with ganja smokers”. After
extensive research into the nature of asylum statistics the majority
of the Commission members agreed “that the effect of hemp drugs in
this respect had hitherto been greatly exaggerated”. Most medical
doctors involved in the study were convinced that Cannabis use did
not cause insanity, but rather stimulated a mental illness that “was
already lurking in the mind of the individual” and that alcohol
played at least an equal if not a more important role. That
conclusion seems to summarise current opinions about the relationship
between Cannabis and psychosis. Unfortunately, the seven-volume
report’s wealth of information was largely ignored in the debates
on Cannabis control that were to unfold in the international arena
under the auspices of the League of Nations and the United Nations
(UN) in the 1920's, 1930's and the 1950's.

1.
Total prohibition of the cultivation of the hemp plant for narcotics
and of the manufacture, sale, or use of the drugs derived from it, is
neither necessary nor expedient in consideration of their ascertained
effects, of the prevalence of the habit of using them, of the social
and religious feeling on the subject and of the possibility of its
driving the consumers to have recourse to other stimulants or
narcotics which may be more deleterious (Chapter XIV, paragraphs 553
to 585).

2.
The policy advocated is one of control and restriction, aimed at
suppressing the excessive use and restraining the moderate use within
due limits (Chapter XIV, paragraph 586).

3.
The means to be adopted for the attainment of these objects are:

adequate
taxation, which can be best effected by the combination of a direct
duty with the auction of the privilege of vend (Chapter XIV,
paragraph 587)

Its
absence from international discussions is pertinent today since
almost nothing of significance in the conclusions of this landmark
report on Cannabis in India has been proven wrong in over a century
since its publication. The Commission looked into earlier
considerations in India to prohibit Cannabis from 1798 to 1892,
concluding those proposals had always been rejected on the grounds
the plant grew wild almost everywhere, and attempts to stop
consumption could provoke the local population and drive them into
using more harmful intoxicants. The report concluded: “In
respect to the alleged mental effects of the 'drugs', the Commission
have come to the conclusion that the moderate use of hemp 'drugs'
produces no injurious effects on the mind … As a rule these 'drugs'
do not tend to crime and violence”.
The report also noted that, “moderate
use of these 'drugs' is the rule and that the excessive use is
comparatively exceptional. The moderate use produces practically no
ill effects”.

Had
the wisdom of the Indian Hemp Commission’s recommendations
prevailed, we might now have a system not dissimilar to the
legislation on Cannabis regulation adopted recently in Uruguay or the
regulation models in Colorado and Washington implemented after the
successful ballot initiatives to tax and regulate Cannabis in both US
states. Unfortunately, the international community chose to take
another course of action and decided to ban Cannabis in the 1961
United Nations Single Convention on Narcotic Drugs. As the name
suggests, the Single Convention is a consolidation of a series of
multi-lateral drug control treaties negotiated between 1912 and 1953.

There
are three key United Nations (UN) treaties which relate to drugs and
Australia is a signatory to all of them:

The
Single Convention on Narcotic Drugs was passed in 1961 when the UN first sought to play a role in the development of international drug laws.
The Single Convention was developed in response to the wide range of
new drugs which had come onto the market since the passage of
previous treaties, which only regulated commonly known drugs such as
morphine, cocaine and heroin. The Single Convention expanded
international drug laws to include Cannabis (erroneously as it is a
non-toxic, non-addictive, herb) and newly-developed drugs.

The
main provision of the Single Convention is Article 36, which requires
signatories to enact laws against various drug-related activities,
such as cultivation, sale, possession, distribution, importation and
exportation, as well as: "intentional
participation in, conspiracy to commit and attempts to commit, any of
such offences and preparatory acts and financial operations in
connexion with the offences referred to in this article". The
Single Convention was one of the first attempts to ensure uniformity
in drug laws around the world and signatories were required to pass
laws in accordance with its provisions. It has had a major impact on
the development of drug laws worldwide with many countries passing
new or updated drug legislation after signing the Convention. Perhaps
most importantly, it was the first piece of international law to
prohibit the use of Cannabis.

The
next important instrument was The Convention on Psychotropic
Substances which was drafted in 1971. Again, this was developed in
response to the growing use of drugs such as MDMA, LSD and other
newly-discovered hallucinogens, and the drugs contained in plants
such as psilocybin mushrooms. Like the Single Convention, the
Convention of Psychotropic Substances was passed at a time when
governments around the world were becoming concerned at the
widespread use of hallucinogens and actively spreading fear that
drugs could cause health risks and an increased propensity to engage
in ‘anti-social’ conduct.

The
United Nations Convention Against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances was passed in 1988, the final major piece
of international drug law. This represented yet another attempt to
crack down on the use of drugs as the ‘War on Drugs’ waged on, a
fact that is noted in the Preamble to the Convention, which discusses
the unsuccessful attempts of previous conventions to prevent drug use
and the increase in drug usage and trafficking around the world. This
Convention went a step further than previous conventions, by
requiring signatories to enact laws aimed at preventing organised
drug crime and confiscating the proceeds of drug-related activities.
It also required signatories to control drug precursors.
Significantly, Article 3 states that signatories must take steps to
criminalise drug possession, drug purchase and drug cultivation for
personal consumption, subject to its constitutional principles and
the basic concepts of its legal system.

Before
the 1960's in Australia, drug use was not completely unknown, but
dependent drug use was typically the result of the use of opiates
after first using them for medical reasons. There were drug dependent
doctors (and their wives) and a small bohemian subculture that used
drugs. Many Australian arrests for drug offences involved visiting
jazz musicians. In 1961 Australia signed the International Single
Convention on Narcotic Drugs supporting an obligation to make
Cannabis available as a medicine. Most current state and federal
Cannabis control acts in Australia are in contradiction of this.

It
is possible that Australia's purported international obligations
could hinder moves to decriminalise or legalise certain drugs in the
future. One interpretation is that Article 36 of the Single
Convention does not require signatory nations to criminalise drug
related activities but simply requires them to impose adequate
punishments for ‘serious offences’. Furthermore, each Article of
the Single Convention contains a caveat to the effect that, if a
signatory state’s Constitution conflicts with the provisions of the
Convention, the nation’s Constitution would take precedence and the
conflicting provisions would not apply.

In
Australia, it is the Federal government which is a signatory to the
Conventions, rather than state governments. Although most state law
generally follows federal ones, state governments can still enact
laws which conflict with the Conventions. The majority of minor drug
matters, such as drug possession and supply, are indeed regulated by
state laws. At any rate, it seems the UN may one day repeal its
instruments with the European Parliament recommending that The United
Nations Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances be done away with, citing the failed ‘War
on Drugs’ as evidence that prohibition simply does not work. The
three UN Drug Conventions of 1961, 1971 and 1988 impose a
‘one-size-fits-all’ prohibitionist approach to drug policy
throughout the world. The conventions could be amended to give
countries freedom to adopt drug policies better suited to their
particular needs. However, repealing the Conventions may be
procedurally difficult because they do not contain a termination
clause meaning it might need to remain in force until all signatories
formally withdraw.

Theoretically,
the Conventions could be changed by modification, such as moving a
drug from one schedule to another or simply by removing it from the
schedules. However, this cannot be done with Cannabis because it is
embedded in the text of the 1961 Convention. Also, modification would
need a majority of the Commissions’ 53 members to vote for it.
Amendment to the conventions, that is changing an article or part of
an article, does not offer a more promising route for the same
reason. Even if a majority were gained, then only one state need ask
for the decision to go to the Economic and Social Council for further
consideration and demand a vote.

The
1971 and 1988 Conventions need a two-thirds majority for change, not
just a simple majority. None of this would occur for the simple
reason that no votes are taken. All resolutions go through by
informal agreement. Also, only those countries up-to-date with the
payment of their UN dues are technically allowed to vote, which is
one reason why no votes are taken, as many countries rarely are
paid-up. Another alternative is state-by-state denunciation, but even
then the conventions would remain in effect until the number of
signatories fell below 40 in the case of the 1961 convention.

Moreover,
because the 1988 convention has no termination clause, it would
remain in effect even if only one signatory remained. Many articles
in the conventions are prefaced by the words “subject to
its constitutional principles and the basic concepts of its legal
system”. This has been used by the US not to implement part of
article 3 of the 1988 Convention, which prevents inciting others to
use narcotic or psychotropic drugs, on the basis that this would be
in contravention of their constitutional amendment guaranteeing
freedom of speech.

There
appears to be an ever-widening gap between the UN Conventions, UN
agencies’ own interpretation of them and the reality of various
countries’ responses to the increasing use of illicit drugs for
recreational purposes. The 1961 Convention limits the production,
manufacture, export, import, distribution of and trade in use and
possession of controlled drugs. It also allows the use of controlled
drugs for medicinal and scientific purposes, which means that the
prescription of heroin, morphine or methadone to heroin addicts is
within the conventions. However, the 1988 convention specifically
requires the possession of scheduled drugs for personal consumption
be made a criminal offence under domestic legislation. Although
initially complying, many countries, particularly in Europe, have
either introduced administrative sanctions for possession of illicit
drugs or have simply decided not to enforce the law in this respect.

A
report by The Beckley Foundation in 2012, Roadmaps
to Reforming the UN Drug Conventions,
highlighted that in principle there are many ways in which countries
or groups of countries could change the present system of treaties,
or change their status with respect to them. In practice, all the
ways pose substantial difficulties, but some seem clearly more
feasible than others, in terms of action in the short to medium term.
In particular, the report details the treaty amendments that would be
necessary if a country (or a group of countries) wished to experiment
with either of the following options:

clear
and explicit decriminalisation of the possession of one or more
currently controlled substances for personal use;

the
creation of a regulated, non-medical market in one or more
controlled substances.

Each
of the three treaties sets out procedures for amendment. Any
Party may propose an amendment to the 1961 treaty (Art. 47). The
Economic and Social Council (ECOSOC) of the UN may then ask Parties
if there is unanimous support, failing that, may decide to call a
conference to discuss the proposed amendment. A similar procedure is
provided in the 1971 treaty (Art. 30), but with a little more detail (proposed amendment enters into force if no party rejects within 18 months). ECOSOC has the power to decide
whether a conference of Parties should be called, immediately or after 18-months for comment in which one or more Parties
reject the change. The 1988 treaty (Art. 31) has a 24-month comment
period, with an option for ECOSOC to call a conference thereafter if majority of Parties request it be done. The only successful
amendment to the treaties was the 1972 Protocol to the
1961 treaty, agreed on at the adoption of the 1971
convention. The 1972 Protocol strengthened some provisions of the
1961 treaty, though not to the extent hoped for by the
US.

Other
than this, the only attempt to amend the treaties was in 2009 by
Bolivia, which filed a proposal to amend the 1961 treaty by removing
coca chewing, a traditional practice, from
its scope. The US convened a group
of ‘friends of the convention’ to rally against the
proposal. In the end 18 countries, mostly from Europe and North
America, including all the G-8 (economically most powerful
nations), filed objections to the proposal by the deadline of January, 2011. While ECOSOC could have called a conference of
Parties to consider the proposal, Bolivia in June 2011, used an alternative procedure, by formally announcing
its denunciation of the treaty, to take effect on 1 January 2012,
with a plan to re-accede with a reservation concerning coca
leaf.

A
psychoactive substance could in principle be removed from the scope
of the treaties by removing it from any of the schedules of the 1961
and 1971 treaties. This would require the recommendations of a WHO
Expert Committee (transmitted through the WHO Director-General) and
approval by a majority vote in the Commission on Narcotic Drugs (CND)
and then in the ECOSOC, if any Party appealed the CND decision there.
In the specific cases of Cannabis, coca and opium, there would still
be provisions in force in the 1961 treaty that require state control
of licensing and production and a state monopoly wholesaler. The
provisions on ‘changes in the scope of control’ in the 1961
treaty allow for the possibility of ‘deleting a drug... from a
Schedule’, but this would require that the WHO find that the
substance is not ‘liable to similar abuse and productive of similar
ill effects’ as the other drugs listed in the schedules
accompanying the treaty (Art. 3). Similarly, although the main
emphasis in the 1971 treaty is on adding substances to the schedules,
there is mention of the possibility to ‘delete’ a substance from
the schedules (Art. 2). However, recommendations from WHO are subject
to approval by the Commission on Narcotic Drugs under both treaties,
and also subject to a possible appeal to ECOSOC under the 1971
treaty.

Periodically,
UN member states set out how they'll implement the conventions in
the form of a Political Declaration and Plan of Action. In 2009 the
UN member states established the Political Declaration and Plan of
Action International Cooperation Towards an Integrated and Balanced
Strategy to Counter the World Drug Problem. It was due to expire in
2019. Until 2012, at least on paper, all was going to plan. That year
representatives from Mexico, Guatemala and Colombia successfully
lobbied for an extraordinary Special Session of the UN general
Assembly to be held on the world drug problem. Mexico, Guatemala and
Colombia argued the current approach to drug control wasn't just
failing, it was playing into the hands of criminals. In short,
these countries were war-weary from being on the front-line of the 'War on Drugs' for so long, with little sign of peace.

Unfortunately,
the story of how the UN General Assembly Special Session on the World
Drug Problem 2016 has come about, doesn't provide any further clarity
on what changes are needed. Since the announcement in 2012, much of
the global public policy debate on the world drug problem has been
less than helpful. Discussions seem to have focussed on strategy not
policy goals. Civil society's policy discourses have focussed on
demanding drug policy reform that stops the harm of the 'War on
Drugs'.

The
UN University recently argued there is a tension built into
global drug policy because narcotics are both a source of social
harms and social goods. Some argue the legitimacy of this
argument is supported by the positive social goods realised by the
decriminalisation of Cannabis possession and consumption. Add to this
mix the unintended harm caused by the 'War on Drugs' and you've a
nascent argument for a revolution in global drug policy. The current
goal of global drug policy clearly relates to illicit narcotics and
psychotropics. And, as such, by definition this doesn't include those
narcotics and psychotropics that present legal social goods. As has
been proven in Portugal, and the US, sovereign states still maintain
the capacity to regulate narcotics that provide social goods.

Some
experts have been arguing vehemently for decriminalisation or
legalisation of drugs, referring to the Portugal experience to
support this position. Yes, Portugal has decriminalised drug
possession, but the dealing, production or growing of drugs remains a
criminal offence. When the Portuguese government decriminalised drug
possession it also made substantive investments in social and health
programs: including minimum income supplements and addiction
treatment. If anything the Portugal experience highlights the need
for innovation in drug control policy: not simplistic
decriminalisation or legalisation. In contrast, global drug policy
needs to be focussed on a realistic goal: reducing drug-related harm
experienced by individuals and communities, including the harms of the 'War on Drugs'.

A
strategy focussed on a harm reduction goal requires a three-pronged
approach: supply and demand reduction strategies, and harm
minimisation. At present the global drug policy primarily focusses on
supply reduction. Embryonic versions of the three-pronged model for
combatting drug problems already exist in Canada and Australia (National Drug Strategy). Supply reduction is
sometimes referred to as 'prevention' and has traditionally been seen
as a front-line program that targets drug dealers and importers to
reduce the availability of drugs. It's believed if the
number of dealers and the availability of drugs can be reduced, drug use may be prevented as well. This is not meant to be a blunt instrument targetting
drug users, rather strategic interventions that have impacts on
supply. In the global context this piece should be focussed on the
disruption of global illicit narcotics and psychotropic drug supply
chains: in China, Myanmar, Laos, Afghanistan and Mexico.

Its
core, a focus on reducing the desire or need for illegal/illicit
drugs in our communities. This has many shapes and includes early
intervention, education, demand for treatment and measures designed
to remove the user's need from the equation of drug trafficking. The
harm minimisation or harm reduction strategy should attempt to reduce
the drug-related harm experienced by individuals and communities.
This is typically seen as the safety net for the other two policies
and accepts the reality that the other policies will never be
completely successful. Included in this strategy are healthcare
programs focussed on the health and safety of those who are engaged
in unhealthy and unsafe drug use practices.

The
narcotic and psychotropic conventions have been operating for over 50
years, but tangible progress towards minimising and eliminating the
availability and use of illicit drugs and psychotropic substances has
been marginal at best. Decriminalisation of illicit narcotics and
psychoactive substances is unlikely, on its own, to reduce the
societal harm created by the use and abuse of narcotic and
psychotropic drugs. And as illustrated by the illegal trade in
tobacco products, decriminalisation isn't a guarantee that the
violence and corruption associated with black markets will be
entirely eliminated either. Statistics
show reductions in crime in jurisdictions where Cannabis and hemp are
legally consumed, Colorado in the US, for example. A 2014 study
out of the US concluded there is no indication of a crime
exacerbating effect of medical Cannabis legalisation on any Part I
offences (defined as, Criminal homicide, murder and non-negligent
manslaughter). Alternatively, US state medical Cannabis laws may be
correlated with a reduction in homicide and assault rates which runs
counter to arguments suggesting legalisation of Cannabis for medical
purposes poses a danger to public health in terms of exposure to
violent crime and property crimes.

This
year's United Nation's General Assembly Special Session on the World
Drug Problem (UNGASS
2016) is, by UN standards, set to be controversial. But it is
unlikely to be the game changer in global drug policy that some are
seeking unless consideration is given to redefining the underlying
goal of world drug policies, there will be no change in the prospects
for reducing the harmful effects of drug abuse. The one simple truism
of the drug policy debate is that there are no simple solutions, nor
much consensus. Solutions become even more difficult to find if
you're focussed on the wrong goals. The current global drug policy
goals - the elimination of the use and trade of illicit narcotics -
outlined in the UN's Political Declaration and drug control
conventions, don't address the ground truth of the global drug
problem. And these goals obfuscate the intent that drove the
development of the conventions; reducing the harmful effects of
substances that are being, or are likely to be, abused in such a
manner as to constitute a public health and social problem. The story
of how UNGASS 2016 has come to be, is itself evidence that there
might be a problem with global drug policy goals.

In
Australia the debate on medicinal Cannabis and its use is deemed
controversial by those whom advise policy makers, in the sense that
it represents a collision of terms, concepts, legal boundaries and
values. The 2015 Drug Policy Modelling Program (DPMP) from the
National Drug and Alcohol Research Centre (NDARC)
reportstates any medicinal Cannabis debate in Australia should be informed by
the experience of different regulatory regimes abroad. Noting there
are a variety of options to consider including several models
that involve a higher level of control against net-widening and
diversion and some that allow for a greater adherence with standard
medical practice, and yet others that are more open to fast
introduction of innovative, emerging treatment options.

The
report concludes that a key issue for policy makers is the extent to
which only pharmaceutical Cannabis products versus herbal products
under suitable regulatory control should be introduced. "Policy
makers need to determine the extent to which authorisation is
strictly limited versus more broadly defined (prescription versus
recommendation). Supply
options requires decisions about the extent to which the key goal is
ensuring a high quality range of product types (pharmaceutical,
medical grade herbal, herbal) are available to patients versus
minimising the risk of diversion into the recreational market. "The
tightness of the model will depend on the extent to which it is
desirable to draw clear distinctions between medicinal and
recreational use, with the attendant risk of creating a false
dichotomy and valorising medicinal use at the expense of
marginalising recreational use and non-recognised medical use".

In February 2016, a spokesperson for Australia's Federal Health Minister outlined the Government’s current position regarding the use of medical Cannabis in Australia as "supportive of use for medicinal purposes where it is evidence-based and backed by good science to ensure favourable patient outcomes". However, the Government is concerned about people accessing illicit Cannabis supplies, exposing themselves to risk without medical supervision and increasing adverse results. The Minister announced the Government’s intention to enable cultivation on 17 October 2015 and legislation to enable this is intended to be introduced in the week commencing 8 February 2016. The Office of Drug Control within the Department of Health will be responsible for overseeing the cultivation scheme. Once the Secretary is satisfied there is a lawful use, cultivators will be granted a licence, subject to conditions to ensure Cannabis is not diverted for illicit uses (the Office will monitor compliance).

"There have always been legal pathways to access Cannabis products for medicinal purposes under the Therapeutic Goods Act 1989 ... however, these have been poorly used. In part, this is because of difficulty in getting a supply of products to import", the government spokesperson said. The Government believes by cultivating and manufacturing locally, appropriately manufactured products will be assured. When medical practitioners become aware of the availability of product and evidence is available of its safety and efficacy, they can consider it within their clinical practice. The scheme will facilitate pharmaceutical companies undertaking clinical trials on prospective Cannabis-based products and enable involvement in manufacture of product for supply to clinical trials and other patients with any pharmaceutical company free to bring forward a product for registration by the TGA based on clinical trials conducted overseas. The clinical trials being conducted by Australian states are seen to be necessary to increase the evidence base for Cannabis for medicinal purposes. There is sufficient evidence that Cannabis-based products may have a benefit to patients in certain clinical settings under appropriate medical supervision. The Government is concerned about the health and welfare of all Australians and wishes to ensure that they have access to the most appropriate and safe treatments available. Patients are expected to have access to medicinal Cannabis products manufactured from Cannabis legally cultivated in Australia as soon as the first half of 2017.

Smoking cigarettes, drinking alcohol and gambling are enjoyed by a lot of Australians, but they can be seriously harmful to some, to their families, to others, and can involve a lot of violence. We cannot eliminate smoking, drinking or gambling by making them a crime, so we reduce the harms by regulating sale and other measures, such as public campaigns to persuade people to give up, restrictions on advertising, treatment for addiction and so on. The US tried to ban drinking alcohol, Prohibition, it didn't work. By contrast, the use of what law-makers deem a drug (Cannabis is a non-toxic, therapeutic herb, wrongly proscribed as a drug) is mostly prohibited, by making possession for personal use a crime. Why a different attitude to drugs? The distinction is irrational and has adverse consequences. The futile attempt to prevent drug use by prohibition is hugely expensive and worse, it makes criminals out of ordinary people. Bringing people before the courts, stigmatising them as criminals and punishing them by fines or imprisonment is only justified if the conduct is wrong, and seriously wrong at that. We have eliminated crimes such as vagrancy, blasphemy, adultery, prostitution and homosexual acts because we have come to recognise that these behaviours are not wrong or, as some would say, not sufficiently wrong to justify making them a crime.

There is much that can be done to reduce the harmful effects of drug use and abuse. Such measures should not be hampered by the cry that they condone a crime when use should not even be a crime (a health issue, it should be nothing to do with law enforcement). Drug use should no more be a crime than smoking, drinking or gambling. It is time to give up the futile attempt to prevent drug use by prohibition and to concentrate on rational and achievable measures to minimise harm (supposed to be the over-arching principle adopted by the Australian government and the basis of the National Drug Strategy since 1985). Sales should be a different matter. With decriminalisation the sale of drugs would require a regulatory framework to control. Just as the market for tobacco, alcohol or gambling is regulated, and there might be some drug products so harmful we wouldn't countenance even regulated sale. It would take time to devise a satisfactory regulatory regime for the sale of all currently deemed illicit drugs. That is for tomorrow. Meanwhile, the abolition of the crime of possessing drugs, where possession is for personal use, is something that can be done today.

Dr David Nutt, Professor of Neuropsychopharmacology at the Imperial College London, and on the Scientific Board of the International Centre for Science in Drug Policy (ICSDP), stated, “Governments have yet to systematically measure and evaluate their policies based on health and security outcomes experienced by communities. These outcomes include the numbers of fatal overdose, blood-borne disease transmission rates, or traffic accidents – all of which have a far more meaningful impact on communities than measuring the level of drug use in the general population, or the amount of drugs that have been seized annually. While these may be important statistics, they tell us very little about how drugs are impacting communities”.

1 comment:

Wow! This is amazing for those of us new to the "movement". I now understand what was meant when I was told it was a global issue and it wouldn't happen anytime soon :( I hope to use this to educate people and may even be useful for my court case. If not at least I fully understand the gravity of the situation we face. Thank you and bless you.